People should not be prosecuted for comments they make during a private conversation, the Law Commission has said in a controversial review of hate crime and hate speech laws.

The commission originally proposed removing the current 'within a dwelling' exclusion of words or behaviour in ‘stirring up hatred’ offences. This protects a meeting held in a large private house but not a private conversation in a family car. However, an ‘overwhelming majority’ of the 1,569 consultation respondents opposed the proposal.

One respondent said: ‘What is said in a person’s home is different from what is said in public, and there would be a danger of people pursuing unnecessary litigation and so prohibiting freedom of speech.’ Another respondent said: ‘Although hate speech is wrong wherever it is… for most of us home is where we relax, we may express careless words, but we often correct one another.’

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Messages on a family WhatsApp group would ‘almost certainly’ give rise to reasonable expectation of privacy

Source: iStock

Such was the strength of feeling on the issue that the commission undertook further work to see how hate crime laws could be reformed to ensure they were compatible with the rights to freedom of expression and respect for one’s home and private and family life, looking at how comparable jurisdictions in New Zealand, Australia and Canada approached the issue.

‘On balance, we have concluded that an exception that is based on whether the conduct was in a public or private place is outdated when so much inflammatory hate material is circulated online. A protection based on “conversation” accords best with the types of communication respondents were most keen to see protected. We believe that this would provide greater clarity than trying to enumerate in legislation what activities are “public” and/or “private”,’ the commission said.

On what defines a private conversation, the commission said messages on a WhatsApp group composed of a small number of family members would ‘almost certainly’ give rise to a reasonable expectation of privacy. ‘Conversely, a group of police officers sharing racist or homophobic material would not.’

The recommendation to replace the dwelling exception with a new definition of a private conversation is one of 34 recommendations in today’s 546-page report.